2016L238 (PLP)

Through this First Appeal under section 23 of the Pakistan Environmental Protection Act, 1997, the appellant has prayed that the action of sealing of factory of the appellant by officials of respondent No.3 and order bearing No.297, dated 09.10.2015 passed by respondent No.3 (on the face of letter No.157/AD/R&I/EPA/MN/1090, 1st October, 2015) be declared illegal, without lawful authority and ineffective upon the rights of the appellant.

2. Briefly the facts of the case as discernable from the contents of this appeal are that the appellant purchased land measuring 16 kanals and 11 Marlas situated at Khewat No.91/91, Khatoni No.195, 14-km Lahore-Khanewal Road, Mouza Karplapur, Multan, from respondent No.7 and after obtaining NOCs from all the concerned departments and fulfilling all the codal formalities, constructed a factory thereupon known as Mega Steel Mills (Pvt.) Limited. Respondent No.7 filed an application to the Chief Minister Punjab alleging therein that two furnaces have been installed in the said factory for the production of iron rods and TRs which are polluting the environment and causing diseases of eyes and lungs in the vicinity. This application was converted into complaint before the Environmental Tribunal Lahore by respondent No.3/Director General Environmental Protection Agency Punjab, Lahore, which is pending adjudication. The appellant also filed an appeal before the Environmental Protection Agency for the dismissal of complaint bearing No.44/2014. Said appeal was dismissed in default vide order dated 17.09.2015. However, the same has been restored vide order dated 01.12.2015. During the pendency of said application for restoration of the appeal, the officials of respondent No.3 came to the spot and sealed the factory of the appellant in pursuance of order dated 09.10.2015 passed by respondent No.3. Hence this FAO.

3. It is contended by the learned counsel for the appellant that the respondent/department has no jurisdiction to seal the premises, of the appellant. He further contends that the sealing of premises of the appellant is violation of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. He further submits that the respondent/ department has no power to seal, the premises of the appellant under sub-Regulation (3) of Regulation 20 of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000 as well as under the Punjab Environmental Protection Act, 1997. On the other hand learned Assistant Advocate General assisted by learned counsel for respondent has supported the impugned action of sealing the factory of the appellant by the official of respondent No.3 as well as impugned order dated 09.10.2015.

4. Arguments heard. Record perused.

5. For the following reasons, this appeal is liable to be accepted:-- (a) As regards the contention of the learned counsel for the appellant that the respondent/department has no power and jurisdiction under the Punjab Environmental Protection Act, 1997 as well as Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, for facility of reference, the relevant, provisions of law are reproduced herein below:- "

16. Environmental protection order.

(1) Where the Provincial Agency is satisfied that the discharge or emission of any effluent, waste, air pollutant or noise, or the disposal of waste, or handling of hazardous substance, or any other act or omission is likely to occur, or is occurring, or has occurred, in violation of any provision of this Act, rules or regulations or of the conditions of a license, or is likely to cause, or is causing, or has caused an adverse environmental effect, the Provincial Agency may, after giving the person responsible for such discharge, emission, disposal, handling; act or omission an opportunity of being heard, by order, direct such person to take such measures as the Provincial Agency may consider necessary within such period as may specified in the order. (2) In particular and without prejudice to the generality of the foregoing power, such measures may include-- (a) immediate stoppage, preventing, lessening or controlling the discharge, emission, disposal, handling, act or omission, or to minimize or remedy the adverse environmental effect; (b) installation, replacement or alteration of any equipment or thing to eliminate or control or abate on a permanent or temporary basis, such discharge permission, disposal, handling, act or omission,. (c) action to remove or otherwise dispose of the effluent, waste, air pollutant, noise or hazardous substances; and (d) action to restore the environment to the condition existing prior to such discharge, disposal, handling, act or omission or as close to such condition as may be reasonable in the circumstances; to the satisfaction of the Provincial Agency. (3) Where the person, to whom directions under subsection (1) are given, does not comply therewith, the Provincial Agency may, in addition to the proceeding initiated against him under this Act or the rules and regulations, itself take or cause to be taken such measures specified in the order as it may deem necessary, and may recover the costs of taking such measures such person as arrears of land revenue." The other relevant provision relied upon by the learned counsel for the respondent/department and the learned Assistant Advocate. General contains in sub-Regulation (3) of Regulation 20 of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, which is reproduced herein below:- "

20. Cancellation of approval (1) (2) (3) On cancellation of the approval, the proponent shall cease construction or operation of the project forthwith." As is evident from the above quoted provisions of section 16 of the Act ibid as well as sub-Regulation (3) of Regulation 20 of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, it does not empower the respondent/department to seal the property, therefore, the sealing of property/premises of the appellant by the officials of respondent No.3 is beyond the scope of Environmental Laws and Regulations relied upon by the respondent/department. (b) The sealing of property/premises of the appellant by the officials of respondent No.3 is also violative of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. This would not only deprive the appellant but also the labourers working there from this livelihood, which is not the intention of law. (c) The word sealing is nowhere mentioned either in the Punjab Environmental Protection Act, 1997 or the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, therefore, if the Legislature has not used the word sealing, this omission cannot be supplied by the Court under the principle of casus omissus. Reference may be made to case law titled Amanullah Khan v. Chief Secretary, Government of NWFP and others (1995 SCMR 1856). The relevant portion of the judgment is reproduced herein below:-- "

4. The learned counsel for the petitioner perhaps attempted to press into service in his arguments the concept of 'casus omissus'. Casus omissus is a point or case unprovided for. When a given state of affairs does not come within the obvious meaning of the words of the statute, that is, when certain contingencies are not provided for or when the words do not embrace the particular question in hand, it is a case of 'casus omissus' (see Bhadramma v. Kotam Raj (AIR 1955 Hyderabad 140). By the recognized principles of construction of statutes we are not entitled to read words into a statute unless clear reason for it is to be found within the four corners of the statute itself. In Dr. L. Raymond v. Flourence B. Yakehee (AIR 1957 Allahabad 212) the process of casus omissus was depreciated in the following words:-- "A court can construe or interpret existing words but cannot supply missing word in a statute." In Kamalaranjan v. Secretary of State (AIR 1938 PC 281) this rule of construction was disapproved in the following paragraph at page 383 of the report:-- "The court cannot put into the Act words which are not expressed and which cannot reasonably be implied on an recognized principles of construction. That would be a work of legislation, not of construction, and outside the province of the Court." Again it is a well-established principle of construction of statutes that the Court cannot supply omissions by implication and analogy, unless existing provisions of a statute by necessary intendment to compel the court. (See Rajammal v. The Chief Justice (AIR 1950 Madras 185). That is only possible that it effectuates the legislative intention." (d) The act of sealing the property of the appellant by the officials of respondent No.3 is also violative of principle of Audi Alteram Partem as no notice was given by the respondent department to the appellant. It is well settled principle of law that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. Reference may be made to cases titled (1) The University of Dacca through its Vice-Chancellor and (2) The Registrar of University of Dacca v. Zakir Ahmad (PLD 1965 SC 90); Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232) and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 SCMR 1034).

6. Sequel to the above, this appeal is accepted and the action of sealing the premises of the appellant by officials of respondent No.3 and impugned order dated 09.10.2015 are hereby set aside with no order as to cost. MH/M-21/L Appeal allowed.